S&C Partner and former Director of the U.S. Patent and Trademark Office Andrei Iancu and litigation associate Cooper Godfrey co-authored an article for Law360 discussing the Supreme Court’s decision to overturn the Chevron doctrine and its impact on agency rulemaking and litigation.
On June 28, in Loper Bright Enterprises v. Raimondo, the U.S. Supreme Court ruled that courts may no longer defer to an agency’s interpretation of an ambiguous statute, a practice that had been known as Chevron deference. The authors note that the Loper Bright decision will have limited consequences for judicial review of USPTO rulemakings because the USPTO generally lacks substantive rulemaking authority. However, where “the decision may have some impact” is “on the provisions of the patent code added by the Leahy-Smith America Invents Act, which have involved Chevron deference issues in the past, pertaining to the USPTO's implementation of the act.” Nevertheless, the decision “makes abundantly clear that no deference should be applied to any USPTO rulemakings,” whether “promulgated under the America Invents Act or other provisions of the patent code,” including recent rulemakings like the USPTO’s notice of proposed rulemaking on terminal disclaimer practice.
Read: “After Chevron: Expect Limited Changes In USPTO Rulemaking”